What if a President is Sued in Civil Court

Posted By R Tamara de Silva || 18-Jan-2017

What Happens When a President is Sued in Civil Court?

What do former Presidents Theodore Roosevelt, Harry Truman, and John F.
Kennedy have in common with President-elect Donald Trump? Out of all of
the Presidents who have preceded Trump, only these three faced outstanding
civil lawsuits when they were elected. The suits involving Truman and
Roosevelt had been dismissed by the time they took office, with the dismissals
affirmed on appeal thereafter. The two cases against Kennedy, stemming
from an auto accident, were filed during his campaign and ultimately settled
out of court when the trial court denied Kennedy’s claim of immunity
under the Soldiers’ and Sailors’ Civil Relief Act of 1940.

President elect Donald Trump has faced a few lawsuits on the eve of taking
office and getting elected, including a new defamation suit brought just
yesterday by a Summer Zervos, who is represented by Gloria Allred.[1][Copy of pleading] This comes on the heels of a suit he settled against Trump University
that was scheduled to begin trial on November 28, 2016.[2] Without touching on the merits of the current defamation suit- what would
happen to the current defamation suit were it to survive the pleading
stage and continue? It depends... The short answer is that typically,
the President enjoys complete immunity from civil liability for actions
taken within his or her official capacity, but not from any actions taken
before he or she became President. As might be expected, however, the
long answer is a bit more complicated.

Litigation Against a Sitting President for Official Acts

According to the U.S. Supreme Court in
Nixon v. Fitzgerald, a President enjoys absolute immunity from civil liability for any acts
done within his or her official capacity, extending to anything even within
the “outer perimeter” of official responsibility.[3] The Court’s rationale for protecting a sitting President from civil
litigation for official acts is obvious. Litigation poses a risk to the
effective functioning of the executive branch and could distract the President’s
focus from being Commander in Chief. However,
Nixon v. Fitzgerald did not foreclose the possibility that a President could be liable for
acts taken while in office that fall outside the scope of his or her responsibilities.

Despite the broad immunity granted to the President, the Court noted that
other remedies aside from litigation remained as a check on Presidential
behavior. These included the possibility of impeachment, the existence
of Congressional oversight, the desire to be re-elected, the need to maintain
the prestige of the office, and the concern about a potential historical legacy.

Litigation Against a Sitting President for Actions Taken Before Election

But what about, as with the cases currently pending against Trump, litigation
against a sitting President based upon events that occurred before his
election? Former President Bill Clinton is memorable, among other things
for setting a precedent in this area. During Clinton’s first term,
Paula Jones sued him for alleged sexual harassment occurring in 1991,
while he was still Governor of Arkansas. The Supreme Court in
Clinton v. Jones[4] held that a President is not entitled to temporary immunity for anything
he or she did before holding office, meaning that civil suits against
the President are not automatically stayed during his or her Presidency.[4]

The Court went on to say that whether a particular case should be stayed
falls under judicial discretion. Therefore, it would be up to the judge
in any particular case to determine whether the matter is so important
as to warrant the potential disruption and distraction it would cause
to a current President, or whether justice would be better served by delaying
the case until after the end of the President’s term. President
Elect Trump’s lawyers requested a stay in the Trump University case
before it was settled presumably in whole or in part with this in mind-even
as the trial judge encouraged both parties to settle sooner rather than later.[5]

Although there is no legal impediment to pursuing a lawsuit against a sitting
President that began before he or she took office, the practical and logistical
obstacles are significant. Serving process, scheduling depositions and
hearings, and obtaining discovery would all be more complicated than usual.
The biggest obstacle however is there may be no specific precedent or
mechanism that has ever been used to compel the attendance of a sitting
President in a civil court. The
Clinton Court noted specifically that it was not deciding whether any court has
the authority to compel the current President to appear at a specific
time and place (e.g., for a deposition or hearing). Without a mechanism
or precedent, it remains unclear whether a civil plaintiff could actually
compel the appearance of a sitting President in a courtroom.

For more information about your rights under the law, please visit the
website of attorney R. Tamara de Silva.

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